FROM THE SCOTT COUNTY CIRCUIT COURT [NO. 64CR-14-104]
HONORABLE JERRY RAMEY, JUDGE
Witt, for appellant.
Rutledge, Att'y Gen., by: Vada Berger, Ass't
Att'y Gen., for appellee.
KENNETH S. HIXSON, JUDGE
James Neal Bynum appeals after the Scott County Circuit Court
entered an order denying his petition for postconviction
relief filed pursuant to Arkansas Rule of Criminal Procedure
37.1. Mr. Bynum raises three points for reversal. Mr. Bynum
first argues that the trial court erred in finding that his
petition was untimely filed 120 days after the mandate from
his direct appeal was issued by the court of appeals. Next,
Mr. Bynum contends that the trial court erred in ruling that
his trial counsel, who also represented Mr. Bynum in the
direct appeal, was not ineffective. Finally, Mr. Bynum argues
that the trial court erred in denying his petition without
conducting a hearing. We reverse and remand for a new trial
because Mr. Bynum was denied effective assistance of counsel.
Bynum was charged with ten counts of fourth-degree sexual
assault committed against A.H. He was also charged with one
count of second-degree sexual assault committed against T.H.
and one count of second-degree sexual assault committed
against C.P. A jury trial was held, wherein each of the
testified that he was twenty-six years old at the time of the
trial. A.H. stated that, when he was fourteen, he was friends
with one of Mr. Bynum's sons. Over the course of the next
year, he would spend the night at the Bynums' house and
sometimes accompany them on trips. A.H. stated that Mr. Bynum
"seemed like a cool guy" at first and that he built
a trust with A.H. A.H. stated that one night when he was
staying at the Bynums' house, he was awakened by Mr.
Bynum, and Mr. Bynum forced his hands down A.H.'s pants.
A.H. indicated that this was the first of about twenty to
fifty times that Mr. Bynum sexually assaulted him. A.H.
stated that it would happen when they went camping and at any
time Mr. Bynum could get him alone. A.H. recounted another
occasion when they had traveled to a gun show in Tulsa,
Oklahoma, and Mr. Bynum performed oral sex on him in a hotel
testified that he had been friends with another one of Mr.
Bynum's sons in 2013 when T.H. was eleven years old. T.H.
lived at the Bynums' house for about four weeks and would
go with them on vacations. T.H. testified that during that
time, Mr. Bynum put his hands in T.H.'s pants and touched
his "private parts" on two occasions. The first
time it happened in a hotel room during a vacation trip with
Mr. Bynum's family in Hot Springs. The next time it
occurred in Mr. Bynum's home after T.H. had fallen asleep
on a recliner with Mr. Bynum.
testified that he was twenty-four years old at the time of
the trial and that he was friends with one of Mr. Bynum's
sons. C.P. met Mr. Bynum after he had begun playing
basketball in the Boys and Girls Club when he was ten years
old. C.P. also played basketball on Mr. Bynum's team from
age eleven through age fourteen. During that time, C.P. would
join Mr. Bynum and other children on hunting trips, to gun
shows, and to the zoo. C.P. testified that he woke up in the
middle of the night at Mr. Bynum's home to Mr. Bynum
touching him in his shorts and putting his hand on his
"privates." C.P. testified that a second incident
took place in a hotel room in Tulsa, Oklahoma, after having
traveled there for a gun show. He testified that he woke up
on that occasion to Mr. Bynum trying to perform oral sex on
jury convicted Mr. Bynum of ten counts of fourth-degree
sexual assault and two counts of second-degree sexual
assault. Mr. Bynum was sentenced to prison terms of six years
for each of the ten fourth-degree sexual-assault convictions
and twenty years for each of the two second-degree
sexual-assault convictions, to be served consecutively for a
total of 100 years in prison. This was the maximum sentence
allowable for these twelve convictions.
direct appeal to this court, Mr. Bynum argued that the ten
counts of fourth-degree sexual assault against A.H. should be
reversed and dismissed as time-barred by the statute of
limitations. The State did not contest this issue and
conceded error. We agreed, and we reversed and dismissed
those ten convictions. Bynum v. State, 2017 Ark.App.
41, 511 S.W.3d 860. We held that the charges were filed after
the applicable statute of limitations, which required the
charges to be filed within three years of A.H.'s
eighteenth birthday, had expired. Although Mr. Bynum had
failed to make a statute-of-limitations challenge before the
trial court, that issue may be considered for the first time
on appeal because it implicates a court's jurisdiction to
hear the case and cannot be waived. In the direct appeal, Mr.
Bynum also challenged his second-degree sexual-assault
conviction against T.H. and C.P., arguing that the trial
court lacked jurisdiction over those offenses because they
occurred outside the trial court's jurisdiction, and also
that the convictions were not supported by substantial
evidence. We held that the trial court did have jurisdiction
over those offenses because, while separate incidents of
criminal conduct occurred in Hot Springs and in Tulsa,
Oklahoma, both T.H. and C.P. testified that they had also
been sexually assaulted by Mr. Bynum in his home, and there
was nothing to suggest that his home was located anywhere but
in Scott County. We further held that substantial evidence
supported those convictions. Thus, we reversed and dismissed
Mr. Bynum's ten convictions for fourth-degree sexual
assault, and we affirmed his two convictions for
second-degree sexual assault.
our mandate was issued, Mr. Bynum filed a petition for
postconviction relief pursuant to Rule 37.1. In support of his
petition, Mr. Bynum alleged that he received ineffective
assistance of counsel for six reasons. However, because he
argues only two of these on appeal, we limit our analysis to
these two claims:
• At trial, counsel failed to make a
statuteof-limitations challenge to the ten counts of
fourth-degree sexual assault committed against A.H. Had
counsel raised the issue, the trial court would have
dismissed the ten counts related to A.H., in which case
A.H. would not have been allowed to testify or at least
there would have been a limiting instruction. This failure
by counsel resulted in prejudice because Mr. Bynum was
sentenced to consecutive maximum prison terms on all
• Counsel allowed both T.H. and C.P. to testify about
incidents that occurred outside the trial court's
jurisdiction. One of these occurred in Tulsa, Oklahoma, and
the other in Hot Springs. Counsel was ineffective for not
requesting a limiting instruction when the witnesses
testified about those events. Without evidence of these
events that occurred outside the trial ...